dfranklin

About David Franklin

Professor Franklin teaches Constitutional Law, Administrative Law and Conflict of Laws at the DePaul Law School. He graduated summa cum laude from Yale University and received his JD from the University of Chicago. Professor Franklin was a law clerk for Judge Stephen F. Williams of the U.S. Court of Appeals for the D.C. Circuit and Justice Ruth Bader Ginsburg of the Supreme Court of the United States. He was a litigation associate at Covington & Burling in New York. His writing has appeared in, among others, the Yale Law Journal, Iowa Law Review, Chicago-Kent Law Review, Cardozo Law Review, The New Republic, Slate, Green Bag, Chicago Tribune and Washington Post.

On Tuesday, the Supreme Court ruled that people who are injured or killed by the side effects of vaccines cannot sue vaccine manufacturers for alleged design defects. Another day, another victory in the Supreme Court for a business defendant—and another victory for preemption, the legal doctrine under which state law can be nullified when it conflicts with the language or purpose of federal law, in this case the 1986 federal vaccine compensation statute.

It was also yet another victory for the Chamber of Commerce of the United States. The Chamber, through its litigating affiliate, the National Chamber Litigation Center, regularly files briefs as an amicus curiae (“friend of the court”) in the Supreme Court on behalf of the business community—and it regularly prevails.

In a recent ACS Issue Brief, I crunch the numbers. Since Samuel Alito became a justice in 2006, the Court has decided 66 cases in which the Chamber of Commerce filed a brief. Of these cases, the party supported by the Chamber has won 46. That’s a very high win rate: just under 70%. It suggests that while the arguments in the Chamber’s briefs probably aren’t swaying the justices (amicus briefs rarely do), they are finding a receptive audience at One First Street. […]

Judge Henry Hudson’s recent decision striking down the central provision of the health insurance reform statute has gotten (pardon the pun) nearly universal coverage in the legal blogosphere. But I was struck by a section of the opinion that has received little notice: the passage early in his opinion in which Judge Hudson rejects the federal government’s argument that Virginia’s constitutional argument should fail because it is a “facial challenge.”

Virginia’s challenge to the mandatory coverage provision is facial because it alleges that the provision is unconstitutional on its face—that it is invalid as it is written, without regard to any particular circumstances in which it might be applied. (That makes sense, since the provision hasn’t yet gone into effect.) Accordingly, in defending the lawsuit, the United States cited a case that every government loves to cite in constitutional cases: United States v. Salerno. That 1987 case, written by Chief Justice Rehnquist, stated that a facial challenge cannot succeed unless the challenger can “establish that no set of circumstances exists under which the Act would be valid.” In the health care litigation, the United States has argued that this standard isn’t met because the plaintiffs can’t show there isn’t some person somewhere for whom the decision not to buy health insurance counts as an active economic choice regulable by Congress under the Interstate Commerce Clause. […]

Yesterday’s argument in Snyder v. Phelps produced more than its share of intriguing story lines: two first-time Supreme Court oral advocates (including one representing her father), a spirited debate inside the courtroom, and an even more spirited demonstration outside. And, of course, there are the you-can’t-be-serious facts of the case: protesters holding up signs saying “Thank God for dead soldiers” (and worse) near the funeral of a fallen Marine and then posting similar messages on the Internet; the slain soldier’s father winning a verdict of $5 million for intentional infliction of emotional distress and invasion of privacy; the Court of Appeals reversing the entire judgment on First Amendment grounds.

I want to focus, though, on a different story line: what the Snyder argument may tell us about the First Amendment worldview of the Court’s newest member.

One of the unfairest knocks on Elena Kagan during the confirmation process was that she was yet another “stealth nominee”—a liberal, sure, but one without a paper trail, whose personal views about the Constitution were shrouded in a fog of careerism and collegiality. This was never an accurate charge. As a law professor, Kagan wrote around 350 pages worth of law review articles. That may be less than most people who get tenured appointments at Chicago or Harvard, but it’s about 320 pages more than John Roberts ever published. (Don’t get me wrong: Roberts was an extremely qualified nominee—but he was the one without a paper trail.) More importantly, Kagan’s publications reveal a lot about how she approaches constitutional law. […]

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I wanted to thank Andy [for connecting us to the right resource to resolve our procedural question].… You could have simply done the printing and charged us for it, but instead you helped us get the procedure correct – even though that obviated the filing. Thank you!

Lisa A. Mathewson

The Law Offices of Lisa A. Mathewson, LLC

Lisa A. Mathewson

Many thanks to everyone who assisted in the filing of my Extraordinary Writ of Mandamus to the U.S. Supreme Court – a special thanks to Matt, who gave extra effort to assure that my brief was accurate! As a pro se litigant, there is stress going it alone. Preparing my brief for the Court was the one phase where I did not feel alone, thanks to you.

Nina Eva Hajda, pro se

The oral argument in Haeger v. Goodyear went well! I want to thank you and your staff for the wonderful support and your very kind indulgence. I hope we have the opportunity to work with you and your office in the future.

Please extend my appreciation to your staff.

Meeling Tan

Jennings, Strouss & Salmon, PLC

Meeling Tan

Thank you all so much for your help in preparing the Petition for Writ in the Zaunbrecher case on behalf of my clients – the Tunica-Biloxi Tribe, et al.

From the first call to the last, it was a great experience. Your staff is super professional, competent and downright friendly!

Amanda Clark

Forrester & Clark

Amanda Clark

When we have a question about Supreme Court practices, we know we can call Cockle and get the right answer. We know we can trust their experience in dealing with the Court, its rules and personnel. The team at Cockle has repeatedly come through for us, including under tight deadlines. Thank you Cockle!

Mike Persoon

I don’t know whether you and your team are aware that, indeed, the U.S. Supreme Court granted our petition and remanded the case for further consideration.

I forgot to timely express my appreciation. Belatedly, I want to reach out and thank your team members for helping us make this very important achievement. Yes, “Better Briefs Win.”

Curtis L. Kennedy

Honestly, I don’t know where to start, but I will begin by thanking Andy, who gave me a chance and accepted my job. Without knowing what to expect, I picked up the phone and took a leap of faith. I picked up the phone and hung it up three different times. The fourth time, my Guardian Angel whispered to me and said: ‘Joseph, you must call Cockle,’ and assured me that this would be one of the best calls I’d ever make. Then, I dialed the number. The angel on the receiving end – after an introduction and the reason for my call, transferred me to Andy. Andy, like my Guardian Angel, was reassuring. From that first call, what I thought would be a difficult process, was simplified. Every person I spoke with handled my call with a professional touch and in the end, the work was masterpiece. I’m glad I called Cockle for my petition for writ of certiorari to the United States Supreme Court and exceedingly thank all of you for being the best at what you do! I’m so happy that I called Cockle. Remain Blessed.

Chidi Joe AnoruoPro Se Petitioner

This is to express my appreciation for the expertise and professionalism of your team in processing our amicus brief. The initial proofreading team did a first rate job. I was very impressed by the attention to detail in the second round of edits done by Shelley and Mary Ann. Everyone was most helpful. You have a terrific organization. Many thanks.

James J. ClarkLaw Offices of James F. Clark

I would like to express my thanks to Cockle Legal Briefs and personally to Shari, Andy, and to all that took part in providing me their personal and professional help. This petition has been a decade-and-a-half in the making. I simply could not have managed the filing without Cockle.

Joseph RaimondoPro Se Petitioner

Thank you for all of your assistance. You make me look better than I ever thought I could. It was great to put all of these details in the hands of someone else and know that the petition would be timely filed and competently handled.